014-SLLR-1984-V1-SIDDEEK-v.-JAKOLYN-SENEVIRATNE-AND-THREE-OTHERS.pdf
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Siddeek v. Jacolyn Seneviratne
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SIDDEEK
v.JACOLYN SENEVIRATNE AND THREE OTHERS
SUPREME COURT
SHARVANANDA, A.C.J., SOZA, J., AND RODRIGO, J.
S.C. APPEAL No. 22/83 ; C.A./L.A. 9/83NOVEMBER 28. and DECEMBER 1. 1983.
Secf/ons 29 and 39 (13) of Rent Act, No. 7 of 1972 – Can a statutory tenant bef‘ person seeking to be a tenant ? ' -Deed of Agreement – Application to registeragreement with Rent Board – Order made by the Board refusing registration but notcommunicated – Second order made by Rent Board in ignorance of the first andcontrary to it – Appeal to the Board of Review from second order – Application forWrit of Certiorari to quash the second order of the Rent Board and the order madeon appeal to the Board of Review – Delay – Exercise of discretion to issue Certiorari.
The appellant was a lessee of the 4th respondent on a bond dated 26.4.1970 inrespect of residential premises in Colombo to which the Rent Restriction Act No. 29of 1948 ihen operative applied. The lease expired on 30,6.1973. In the meantimethe Rent Act No. 7 of 1972 had come into operation. The appellant continued inoccupation as a statutory tenant and on 26.8.1973 entered into a fresh bond forfive years valid until 31.8.1978 as permitted under section 29 of the Rent Act. The4th respondent applied to the Rent Board to have the bond registered under section29 (2) of the Rent Act. Shortly after the hearing the members of the Board went out
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of office but unknown to the parties the Board had made its Order on 25.2.1975refusing registration of the bond on the ground that the appellant was not a personseeking to be a tenant This Order was not communicated to the parties as requiredby section 39 (13) of the Rent Act. When the Board was reconstituted by a newmembership the application was heard afresh by the ne^ members who wereunaware that an Order had already been made. The new members made an Orderon 26.6.1978 permitting registration. The Appellant (tenant) appealed to the Boardof Review but the appeal was dismissed on 13.6.1979. Thereupon the appellantmoved for a Writ of Certiorari in the Court of Appeal to quash the second Order ofthe Rent Board and the Order made in appeal by the Board of Review. The Court ofAppeal refused the application and the appellant then appealed to the SupremeCourt.
Held —
The Rent Act recognises three classes of tenants : contractual tenants,statutory tenants and persons deemed to be tenants. It is open to a statutorytenant to seek to become a contractual tenant within the meaning of section 29
. The appellant was a statutory tenant after his first lease expired on30.6.1973. As such he was a person seeking to be a tenant when he enteredinto the second lease bond. This second lease bond was therefore qualified forregistration and the first Order of 25.2.1975 of the Rent Board was erroneous.
If the Order of 26.6.1978 of the Rent Board and the Order of 13.6.1979 of theBoard of Review are quashed then the resultant position would be that the RentBoard would have to communicate the erroneous Order of 25.2.1975 infrustratingly belated compliance with section 39 (13) of the Rent Act. It wouldthen be open to the 4th respondent to appeal to the Board of Review which willmost likely set aside the Order. Hence the issue of the Writ of Certiorari will nothelp the appellant in the long run. Further the bond itself had expired more thanfive years ago on 31.8.1978. The ensuing result, if the appellant is granted therelief he seeks, will be stultifying. Certiorari being a discretionary remedy will bewith held if the nature of the error does not justify judicial intervention. Certiorariwill not issue where the end result will be futility, frustration, injustice andillegality.
Per Rodrigo, J. (agreeing) :
' If a person who is a statutory tenant or a person deemed to be a tenant‘ already protected by the Act chooses to enter into an agreement to vacate.
the premises after 5 years or on the happening of an event, why should theAct stand in the way or put it outside the ambit of section 29 (2) 7 '
The appellant has not been vigilant enough to ' ascertain and get the firstorder of the Board communicated. He has only himself to blame it throughneglect, laches or delay, he has not brought it (the first order) to the notice ofthe Board or taken steps to give effect to it. '
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Cases referred to♦
(11 Gunaratne v. Thelenis (1946) 47 NLR 433.
Sideek v. Samambu Natchiya (1954) 55 NLR 367.
Aron Singho v Samuel Silva (1961) 63 NLR 137.
Smwardena v. Karunaratne (1959) 60 NLR 501. 503. 504.
Ibrahim Saibo v. Mansoor (1953) 54 NLR 217, 234.
Ahkanu v. Mankar (1948) 50 NLR 57.
APPEAL from an Order of the Court of Appeal.
H. L. de Silva. S.A. with P. A. D. Samarasekera and A. L. M. de Silva forpetitioner-appellant.
Eric Amerasmghe. S A. with D. R. P. Gunatilleke, Miss D. Guniyangoda and Miss K.Wamgasekera for 4th respondent.
Cur. adv. vull.
January 24. 1984.
SOZA, J.
The appellant took premises No. 29, Fussel's Lane, Wellawatte.Colombo (hereafter referred to in the appropriate context as ' thepremises ") on lease from the 4th respondent on Bond No. 143<jof26.4.1970 attested by U. W. Jayasooriya N.P. for a period of threeyears commencing from 1.7.1970. These were residentialpremises and governed by the Rent Restriction Act No. 29 qf1948. The lease was still in force when the Rent Restriction ActNo. 29 of 1948 was repealed and replaced by the Rent Act No. 7of 1972 operative from 1st March 1972. The lease bond expiredon 30.6.1973 but the appellant continued in occupation of thepremises. Although the notarial lease had terminated by effluxion oftime, still there can be no dispute that the appellant's continuedoccupation was protected by the statute law governing landlordand tenant-see the cases of Gunaratne v. Theienis (1) Sideek v.Sainambu Natchya (2) and Aron Singho v. Samuel Silva (3). Uponthe termination by effluxion of time of his lease the appellantbecame, in current legal parlance, a statutory tenant of the
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premises. When he was still a statutory tenant the appellant took afresh lease of the premises for a period of five years*commencingfrom 1.9.1973 on Deed No. 1985 of 26.8.1973 attested by G.A.Nissanka, Notary Public. One of the covenants of this lease wasthat the appellant would peaceably hand back the^iremises at theexpiry of the period of five years as they would be required for theuse of the 4th respondent for her occupation and/or for theoccupation of a member of her family. This deed No. 1985 was nodoubt executed in this-manner with an eye on section 29(2) of thenew Rent Act No. 7 of 1972 to which I will presently refer.
One result of the enactment of legislation imposing curbs on the. common law freedom of contract was that a tenant could not, evenif he wished to do so, contract out of the protection afforded him bythe statute. Hence an agreement whether notarial or non-notarialby the tenant with his landlord that he would deliver possession ofthe premises tenanted by him to his landlord by a certain date is notenforceable ; it is essentially different from a notice of quitting givenby the tenant. See the cases of Siriwardena v. Karunaratne (4) andIbrahim Saibo v Mansoor (5). The only ways by which the statutoryprotection given to the tenant can come to an end are :
surrender of possession by the tenant to the landlord, and2« an order for eviction of the tenant by a competent Court
-see Ibrahim Saibo v Mansoor (supra) p. 224
#The statutory fetters on the freedom of contract were howeverrelaxed in a limited class of cases by section 29 of the Rent Act No.7 of 1972. With effect from 1st March 1972 it became lawful" forthe landlord of any residential premises and the person seeking tobe the tenant thereof to enter into a written agreement wherebysuch premises are let to such person for a period specified therein,such period being not less than five years, or until the happening ofan event specified therein, where at the end of such period or onthe happening of such event, such premises will be required foroccupation as a residence for the landlord or any member of hisfamily ; and no such contract or agreement shall, notwithstandinganything in any other written law, be valid or have effect in law
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unless it is registered with the board on application made either bysuch landlord or by such person within thirty days after it is enteredinto (section 29(2)). On the expiry of the period or on thehappening of the event, as the case may be, specified in theagreement the tenant is obliged to vacate the premises, (section29(3)). Certain other stipulations follow in the remainingsubsections of section 29 which are not relevant for the purpose ofthe case before us and therefore need not detain,us.
It goes without saying that unless the agreement fulfils therequirements of section 29 the tenant can always recall a promisegiven by him in his contract of tenancy or even in a latercompromise to surrender possession (Alikanu v Mankar (6). IbrahimSaibo v Mansoor (supra) p.224 and Siriwardena v. Karunaratne(supra) pp.503,504). Four important stipulations of section 29(2)must be noted :
The lease, agreement or contract must be in writing (notnecessarily notarial) and entered into on or after 1st March1972.
The person with whom the lease, agreement or contract isentered into by the landlord must be a * person seeking to bea tenant
The period for which the letting must be operative must notbe less than five years or until the happening of an eventspecified in the lease, agreement or contract.
The lease, agreement or contract must be registered with theRent Board on application by either party to it made withinthirty days after it is entered into.
In the instant case the controversy revolves round stipulations (2)and (4) above. The premises the subject-matter of the suit beforeus are situate within the local limits of the Municipality of Colombo.At the material dates their annual value did not exceed the relevantamount, that is Rs. 2000/-. The first lease bond No. 1436 of26.4.1970 expired on 30 6.1973. The second lease bondNo. 1985 of 26.8.1973 was entered into after the Rent Act No. 7of 1972 came into force. At the time the appellant entered into thislease he was already a statutory tenant. The lease on this secondbond was for a period of five years and ostensibly executed with a
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view to taking advantage of the provisions of section 29. On itsexecution the 4th.respondent made an application within theprescribed time limit of thirty days to the Rent Board for theregistration of the bond in question. An inquiry was held by theBoard at which both the appellant and the 4^h respondentparticipated. As it later transpired the Board made order on25.2.1975 refusing registration on the ground that the appellantwas hot a person seeming to be a tenant but before the order couldbe communicated to the parties under Section 39( 13) of the Act.the members of the Board went out of office. Thereafter newmembers were appointed and they, oblivious of the fact that anorder had already been made which onlv remained to becommunicated, held a fresh inquiry. Both the appellant and 4threspondent participated at this inquiry too not knowing that anorder had already been made. The second Eoard held that theappellant was a person seeking to be a tenant and that the bondqualified for registration. This order was made on 26.6.1978 andduly communicated to the parties.
The appellant appealed^to the Board of Review against the orderof 26.6.1978. In appeal the Board of Review of which 1 to 3respondents were members affirmed the order of 26.6.1978 anddismissed the appeal. The order of the Board of Review wasdelivered on 13.6.1979. The appellant then moved the Court ofAppeal for grant of a writ of certiorari quashing the orders of theBoSrd of Review and Rent Board made against him. The Court ofAppeal dismissed the application on 16.2.1983 and the appealbefore us is from that order. At the stage of the certiorariproceedings the appellant discovered that the Rent Board whichhad originally heard the application for registration had in fact madeorder on 25.2.1975 in his favour refusing registration but had notcommunicated it to the parties as the members of that Board hadgone out of office before that step could be taken. In this situationlearned Senior Counsel for the appellant argued that the failure tocommunicate the order was only an administrative irregularity andthat the order of 25.2.1975 was operative and binding andtherefore the new Board had no jurisdiction to hear the matterafresh and make the order of 26j6.1978. In these circumstancesthe order made in appeal by the Board of Rev ew on 13.6.1979was also without jurisdiction.
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The preserft appeal however can be disposed of by consideringtwo questions :
Did the lease bond No. 1985 of 26.8.1973 qualify forregistration ?
If so do the circumstances of this case warrant the issue ofcertiorari ?
Did the lease bond No. 1985 qualify for registration ?
The contention of the appellant is that he is not a person seekingto be a tenant and therefore the lease bond No. 1985 does notqualify for registration. The expression 'tenant' is not defined in theRent Act but from its provisions it is clear that one or more of threedifferent meanings can be attributed to it namely –
contractual tenant,
statutory tenant,
tenant on a deeming provision.
Of these meanings the expression 'tenant' would generally mean acontractual tenant unless the context of the particular statutoryprovision otherwise implies. There is nothing legally or semanticallyrepugnant to the notion of a statutory tenant seeking to be acontractual tenant. There could very well be situations when astatutory tenant would like to be assured of an occupancy for afixed period free from the perils and anxieties of possible litigationand a hostile landlord. Hence there is no intrinsic unlikelihood in astatutory tenant seeking to become a contractual tenant byentering into an agreement such as we have in this case like bendNo. 1985. In the instant case the bond, it must be noted, is notbeing attacked on any grounds of undue influence, duress or fraud.Hence the bond must be treated as embodying an agreementvoluntarily entered into. Accordingly I have no difficulty in holdingthat the appellant,, though he was at the relevant time a statutorytenant, was seeking to be the tenant of the premises within themeaning of section 29(2) of the Rent Act and that the lease bondNo. 1985 is valid and qualified for registration under the saidsection. In this view of the matter the first order of the Rent Boardmade on 25.2.1975 is clearly erroneous.
Do the circumstances warrant issue of certiorari ?
Accordingly if the order of tbe second Rent Board made on26.6.1978 and the order of the Board of Review affirming it arequashed as sought by Counsel for the.appellant then the resulting
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position would be that the parties would be (hrowrt back on theerroneous order of the first Rent Board of 26..?. 1975. The Boardwould have to communicate this wrong order to the parties infrustratingly belated compliance with section 39(t3) of the RentAct which prescribes that 'a copy of the orde- shall be forthwith .transmitted by registered post or delivered to the applicant and tothe respondent*. It will be open to the 4th respondent to appealfrom this order to the Board of Review which in the face of ourconclusion that the order of 25.2.1975 is erroneous, will mostlikely hold likewise and set aside the order. In these circumstancesthe issue of the writ of certiorari will not help the appellant in thelong run. Add to all this the fact that the period of the lease grantedon the bond ended more than five years ago cn 31.8.1973 andthen it will be realised what a grotesque and stultifying result isgoing to be achieved if certiorari goes.
It is necessary at this stage to bear in mind that certiorari is adiscretionary remedy-see Wade : "Administrative. Law' 5th Ed.(1982) pp. 546, 591. As de Smith says in his work "JudicialReview of Administrative Action' 4th Ed. (1980) o. 404 :
'/hus, certiorari is a discretionary remedy and may be withheld ifthe conduct of the applicant, or, it would seem, the nature of theerror does not justify judicial intervention*.
The Court will have regard to the special circumstances of thecase before it before issuing a writ of certiorari. The writ of certiorariclearly will not issue where the end result will be futility, frustration,injustice and illegality. Accordingly I uphold the order of the Court ofAppeal refusing the appellant's application for the issue of a writ ofcertiorari and dismiss this appeal with costs payable by theappellant to the 4th respondent.
SHARVANANDA, A. C'J.-I agree.
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Siddeek v. Jacolyn Seneviratne (Rodrigo, J.)
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RODRIGO, J.-l agree.
This is an appeal that raises a novel point and, one not without
difficulty, as to the construction of s. 29 {2) of the Rent Act No. 7 of
1972 as amended. The section reads :
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' s. 29 (2) Notwithstanding anything in any other provisions ofthis Act, it shall be lawful, with effect from the date ofcommencement of this Act, for the landlord of any residentialpremises and the person seeking to be the tenant thereof to enterinto a written agreement whereby such premises are let to suchperson for a period specified therein, such period being not lessthan five years, or until the happening of an event specifiedtherein, where at the end of such period or on the happening ofsuch event, such premises will be required for occupation as aresidence for the landlord or any member of his family ; and nosuch contract or agreement shall, notwithstanding anything inany other written law, be valid or have effect in law unless it isregistered with the Board on application made either by suchlandlord or by such person within thirty days after it is enteredinto."
The construction revolves around the question ' what is themeaning to be given to the phrase 'seeking to be a tenant ?'and asto the scope of an inquiry by the Rent Control Board under thissection. The context in which this arises is this. The tenant, who isthe appellant, had been in occupation of the premises in suit undera written tenancy agreement with the respondent-landlord whichexpired on 30 June, 1973, The tenant, however, continued'tooccupy the premises when on 26th August, 1973 the landlord andthe tenant purported to enter into a fresh written agreement oftenancy conditioned to terminate at the expiry of 5 years, asmentioned in the section. The section requires such an agreementto be registered with the Rent Control Board (Board). Unless soregistered the agreement is not valid in terms of the section. Thelandlord, therefore, applied to the Board to register the agreementwith the Board. But the tenant, after notice, objected to itsregistration on the ground that the agreement fell outside the ambitof the section in that he was already a tenant of the premises on thedate of the making of the agreement and that therefore he was nota person 'seeking to be a tenant' thereof or, to put the point inother words, the section enables such an agreement to be enteredinto only between the landlord and a person who is seeking to come
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into occupation of the premises for the first time on the footing of atenancy. Counsel for the tenant says this is.the plain meaning of thephrase ' seeking to.be a.tenant;' and backed it up with a referenceto the presumed objective: of the legislature When it enacted thisprovision, the objective being to induce owners of residentialpremises who, being public servants or Diplomats on transfer orservice abroad, do not require the premises- for occupation bythemselves for an ascertainable period) to let .such premises toreliable persons instead of keeping them unoccupied for fear of notbeing able to get vacant possession if . they let them otherwise.- Owners of houses intending to -give them to their children on theirmarriage in the foreseeable future are also said to have been incontemplation by the legislature, when the provision enacted thehappening of an event also as a condition.
Counsel for the respondent-landlord, while not offering anyargument on the presumed objective of the provision, disputes thatthe meaning of the phrase contended for, for the tenant is as plainas it is said to be. He, however, rests his case or this part of it, onthe submission that the Board has no jurisdiction to be holdinginquiries into the contractual or if I understood him rightly, even thestatutory validity of the agreement sought to be registered. He willnot get involved with disputes as to the meaning of the phrase'seeking to be a tenant'. What he says is that the Board's functionis only ministerial when an agreement is tendered for registration onapplication and that the Board has merely to enter it in a registerkepJt for the purpose leaving any dispute arising from its allegedinadequacies as an agreement, to be determined by a Court of Lawwhen the agreement is sought to be enforced at the end of theSpecified period or on the happening of the specified event.
It is argued for the tenant, that this is reducing the Board to amere rubber stamp in this regard and that the words used in thesection with regard to the procedure for the registration militatesagainst such a view, the words used being ' on application madeby ’. This brings into operation it is said, s. 39 (3) of the Rent Actwhich reads :
" s. 39 (3). Before making any order upon any applicationunder this Act, the Board shall give all interested parties anopportunity of being heard and of producing such evidence, oralor documentary, as may be relevant in the opinion of the Board.’
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The agreement cannot be registered, it is argued, without anorder on the application for registration and an order cannot bemade without noticing the tenant – the agreement was sought tobe registered by the landlord – and hearing his objections. This wasthe procedure followed by the Board on this application. Counselfor the landlord does not agree. He cited ss. 5 ; 19 (2)(b)(ii) ; (9) ;11 ; 13(1)(4) ; 14(2); 18 ; 25 (1) ; 26 (1); 34 ; 35 (2) ; 36 (3),and 37 (5) and submitted that each of these requires in the sectionitself an order to be made by the Board on an application to it madeby either the landlord or the tenant but under section 29 (2) nosuch order is required or contemplated and a general provision as isfound in s. 39 (3) does not govern s.29 (2).
It is not without significance that where an agreement isregistered with the Board and the tenant refuses to vacate thepremises on the happening of the specified event or on the expiry ofthe specified period he is liable to a fine of up to Rs.5000/-and/orto imprisonment of either description not exceeding one year. TheBoard also is given control, where an agreement has beenregistered, over the character of occupation of the premises duringand after the pendency of the agreement. For instance, in the eventof the tenant leaving the premises prematurely, the Board it is thatwill authorise its occupation by an approved tenant for the balanceperiod and at the end of the period or the happening of the event;the Court must be satisfied that the landlord requires the premisesfor his occupation or that of a member of his family and where.thelandlord or a member of his family is permitted to occupy thepremises, he is obliged to be in occupation for a minimum period ofthree years. Did the legislature impose restrictions on the landloofor visit the tenant with penalties on registration of a purportedagreement on a mere tendering of such an agreement forregistration by either the landlord or the tenant, as the case may be,behind the back of the other ? While it is obvious that the provision-s. 29 (2)- has been inspired to induce landlords to let theirpremises which would otherwise be kept closed with an assuranceof being able to get them back for their own occupation within thetimes specified, was any mischief sought to be avoided by therequirement that that agreement should be registered with theBoard ? The Board is not specifically required to be satisfied on anymatter before registration. At one time in the course of the
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argument I thought that to permit such agreements (p be enteredinto is to allow one to ride a coach and six through the Rent Act butI am of the view that the Court must be satisfied when theagreement is sought to be enforced that the landlord or a memberof his family actually requires it for his occupation and therequirement that the landlord or the member of his family shouldstay in occupation for a period of three years if they recover thepremises are adequate safeguards against any abuse of theprovision. See s. 29(13) & (14). There does not appear to be anymischief sought to be avoided by this section. But it has its uses.Registration will make the tenant take the agreement more seriouslythan he would otherwise and, of course, enable the Board tocontrol the character of occupation of the premises during itspendency.
If and when objection is taken to the registration of an agreementbefore the Board by either the landlord or the tenant, I think all thatthe Board need be concerned with is that the application forregistration has been made within 30 days of the making of theagreement – s. 29 (2) – and the tenant or the landlord, as the casemay be, admits the making of the agreement. Such an admissionimports more than signing the document. One may sign adocument but it may not reflect his agreement to the terms therein.It is important that at the time registration is sought both partiesmust agree impliedly or expressly that the document expressestheir agreement on the matters specified therein and what is crucialis tljat they are willing to be bound by it as at that date. If they arenot, then the alleged agreement is a non-starter and the section isnot intended to effect futile registration of alleged agreementsAjJiich are in dispute from the word 'go' and which, the tenant, forinstance, does not intend to perform. To register such a disputedagreement is to impose on the tenant or the landlord somethingforcibly when the legislature intended it to be voluntary. To foul therelations between the landlord and the tenant from the moment ofthe forced registration, is to deny the objective sought to beachieved by the section. The landlord will not put the tenant intooccupation in the generality of cases till the agreement isregistered. So such situations will not be common. The section, nodoubt, permits the registration of a written agreement entered intonot earlier than a month. But it is absurd that where one or theother has resiled from it in the meantime, the party holding on to it
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can compel its registration notwithstanding protest by the other.When the agreement was required to be registered within a monthof its making the legislature intended to avoid stale agreements thatno longer hold water from being registered. The agreement mustbe a subsisting agreement at the time of registration. Wheretherefore either party denies the making of it or disputes its validityor refuses to be bound by it, I am of the view that the Board mayreject its registration; It is not required to adjudicate upon issuesrelating to its validity as an agreement as, for instance, duress,fraud or incapacity and the like. It is an agreement which is valid onthe face of it and admitted by parties to have been entered into andotherwise not disputed that is required to be registered. It is not aCourt of law to determine whether the document tendered is in lawa valid agreement. The provision is a simple one to enable parties tovoluntarily enter into an agreement for the purpose on the onehand, and on the other, to enable the Board with the co-operationof parties to give effect to it. It is rarely, if at all, that an agreement-will be denied by the tenant for it is left to the landlord not to put thetenant into occupation of the premises till the agreement isregistered with the Board. The instant case is unusual because thetenant is already in occupation of the premises and he can withoutanxiety afford to dispute the registration of the agreement.
I am, therefore, of the view that the Board rightly noticed theparties and heard them. As for the Board deciding the dispute, seelater.
The dispute that has arisen is one raised by the tenant who hashad second thoughts about the wisdom of entering into theagreement. He does not allege that he was imposed upon intoentering into it. His legal advisers have shown him the way out. H%has found it in the fact that he was already a tenant, either anoverholding contractual tenant or a statutory tenant. But the pointis he is disputing that he is bound by it. As I said the Board shouldhave refused to enter upon that kind of inquiry and refused toregister it. Where, for instance, an agreement is registered becauseno objection is taken to it by either party though the alleged tenantis not " a person seeking to be a tenant" at the time of theagreement and therefore outside the ambit of s. 29 of the Act, hemay, if so advised, canvass it before a Court of law where it issought to be enforced. But, because the matter had been arguedbefore us I will express my view on this aspect of the matter.
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The provision – s. 29 (2) – does not seek to control tendlords andpersons seeking to t>e their tenants in entering into agreements ofthe kind specified. They are voluntary agreements. The sectiondoes not.seek to avoid any mischief. There is no problem if theagreement is between the landlord and a prospective tenant in thesense of a person who is seeking to enter into occupation of apremises for the first time. The problem arises where he is alreadyin occupation otherwise than as a licensee. In this instance, theappellant was already in occupation as an overholding contractualtenant. He by operation of the Act became a statutory tenant.There is another class of tenants styled 'deemed to be a tenant".This has reference to the spouse or a dependant child of adeceased tenant. The question is whether an agreement of the kindspecified in s. 29 (2) cannot be entered into between a landlordand a statutory tenant or a person " deemed to be a tenant'. If aperson who is a statutory tenant or a person ' deemed to be atenant' already protected by the Act chooses to enter into anagreement to vacate the premises after 5 years or on thehappening of an event, why should the Act stand in the way or put itoutside the ambit of s.29(2) ? Whom is it seeking to protect ? Notenant can be protected against himself. He is free to vacate anypremises at his pleasure. Where there is nothing to compel him torelinquish his protected premises, if he enters into an agreementvoluntarily limiting his period of occupation, perhaps, to salve hisconscience that he is keeping the landlord from reasonablyrequiring the premises for his own occupation or for that of amember of his family, why should he be prevented from enteringinto such an agreement ? ' The person ' in s. 29 (2) does notnecessarily exclude a person who is already a tenant and inoccupation of the premises. For this reason it is not right to excludepersons who are already in occupation as statutory tenants orpersons ' deemed to be tenants * who are really statutory tenantsfrom entering into such agreements.
I am, therefore, of the view that a landlord is entitled to enter intoan agreement under s. 29 (2) with any person including personsalready in occupation of the premises in any capacity.
Arguments were also addressed to us on another matter said tohave a bearing on the order of the Board to regis'ter the agreement.The present Board has succeeded another which had gone out of
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office. The application for registration of this agreement had comebefore that other. Board in the first instance for.consideration. Thatwas as far back as 1975. it had, after hearing parties, refused toregister it taking the view that the respondent is not a ' personseeking to be a tenant' within the meaning of s. 29 (2) as he isalready a statutory tenant. This decision, though signed by theChairman, had not been communicated to the parties at any timeand in fact was unkown to the appellant or the respondent or theirlegal advisers throughout the proceedings before the Board or theBoard of Review. They had stumbled upon it at the hearing beforethe Court of Appeal. Anyway, the point was taken before the Courtof Appeal by Counsel for the tenant that inasmuch as theapplication for registration has been rejected by a decision by theBoard which is a continuous body though its composition maychange from time to time, the present Board now comprisingdifferent members, has no jurisdiction to consider the selfsamematter. Counsel for the landlord admits that a decision appears tohave been made by the previous members of the Board but as thedecision had never been communicated either orally or in writingthat decision is in law a 'no-decision' and cannot be taken judicialnotice of. Counsel also says that the decision is not a final ordersince it was not canvassed before the Board of Review and it is onlyif the Board of Review impresses its stamp of approval on it, itbecomes a final and conclusive order.
The order of the previous Board had been made more than 7years ago and the party now seeking its benefit should have stirredhimself to take appropriate steps to ascertain and get the ordercommunicated. Law helps only the vigilant and the tenant whosought to benefit from the order, in the view that I have taken of thematter now, has only himself to blame if through neglect, laches ordelay, he has neither brought it to the notice of the presentmembers of the Board or taken steps to give effect to it. These arewrit proceedings which look for errors of law on face of the recordand there is nothing in the proceedings before the Board or theBoard of Review relating to the present application which indicatesa trace of the order of the earlier Board. I, therefore, think that it istoo late in the day to hark back to that decision.
The tenant, however, has not been prejudiced by theproceedings before the Board or the Board of Review, in the view Ihave taken on the merits of his objections, Writ proceedings being
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11984] 1 SriL.R.
discretionary, I am inclined not to exercise my discretion in favour ofgranting the relief claimed by the tenant. I, therefore, dismiss thisappeal with costs, payable by the appellant to the 4th respondent.
Appeal dismissed.